Article 35 - India's perspective

 

 

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• India-Japan CTA
• India-Iceland CTA
• India-Sweden CTA
• India-United Kingdom CTA

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The following examines how the choices by India of the option in the entry-into-effect provision interact with that chosen by 4 of the other contracting jurisdictions of the MLI, such as Iceland, Japan, Sweden, and the United Kingdom.

 

Table A: Entry into effect positions of the 5 selected contracting jurisdictions - [from India's perspective]

	Deposit of ratification instrument	Entry into force	Entry-into-effect provision		Alternative Rules		Reservations
			Article 35(1)(a)	Article 35(1)(b)	Article 35(2)	Article 35(3)	Article 35(6)	Article 35(7)(a)
India	6/25/2019	10/1/2019		X	X
Iceland	9/26/2019	1/1/2020	X			X	X
Japan	9/26/2018	1/1/2019	X	X
Sweden	6/22/2018	10/1/2018	X			X		X
The U.K.	6/29/2018	10/1/2018	X	X

The "X's" in the table stands for the option that a contracting jurisdiction has chosen with respect to the entry into effect provision of the MLI.

 

As shown in Table A, with respect to the entry-into-effect dates, the selected contracting jurisdictions have taken different alternative provisions and opt-out provisions (reservations) in the application of the entry-into-effect article to its covered tax agreements (CTAs),

• Japan has adopted the following articles: article 35(1)(a) with respect to withholding taxes, article 35(1)(b) with respect to other taxes, and article 35(4), which fast-tracks the entry-into-effect date for cases of mutual agreement procedure under article 16(1). 
• India has chosen the alternative provision under article 35(2) for withholding taxes, adopted article 35(1)(b) for other taxes. It has also adopted article 35(4) regarding MAP cases under article 16(1).
• Iceland has chosen to adopt article 35(1)(a) for withholding taxes, the alternative provision under article 35(3) for other taxes. It has reserved its rights for article 35(4) not to apply to all its CTAs pursuant to article 35(6).
• Sweden has chosen to adopt article 35(1)(a) for withholding taxes, the alternative provision under article 35(3) for other taxes, and article 35(4) for MAP cases under article 16(1). It has also reserved its right under article 35(7)(a) providing that it shall replace the entry-into-effect date of article 35(1), and article 35(4) with the texts described in article 35(7)(a)(i) and (ii) for its CTAs.
• The United Kingdom has adopted the same articles 35(1)(a), 35(1)(b), and article 35(4) as that Japan has adopted.

 

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1.1. Entry into Effect – the India-Japan CTA

 

Table B1 - The India-Japan CTA illustrates the asymmetrical application of Article 35(1)(a) and Article 35(2) with respect to withholding taxes and the symmetrical application of Article 35(1)(b) for other taxes.

 

		India	Japan
(1)	Date of deposit of instrument of ratification	25 Jun 2019	26 Sept 2018
(2)	TA entry-into-force date	1st Oct 2019	1st Jan 2019
(3)	TA Entry into effect (unilateral)	1st Apr 2020	1st Jul 2019
(4)	CTA Entry into effect (bilateral) - WHT	Article 35(1)(a), 35(2)	Article 35(1)(a)
(5)	CTA Entry into effect (bilateral) – all other tax (non-WHT)	Article 35(1)(b)	Article 35(1)(b)

A CTA stands for a covered tax agreement, as defined under article 2(1)(a) of the MLI.

 

India has chosen to adopt Article 35(2) while Japan does not. Article 35(2) is an alternative provision for Articles 35(1)(a) and (5)(a) respectively, and Article 35(3) is an alternative provision for Articles 35(1)(b) and (5)(b). Articles 35(1), 35(2), and 35(3) read as follows:

 

1.2. The legal texts of Article 35(1)(a), as modified by Article 35(2) and Article 35(1)(b)

 

(a) with respect to taxes withheld at source on amounts paid or credited to non-residents (withholding tax), where the event giving rise to such taxes occurs on or after the first day of the next calendar year that begins on or after the latest of the dates on which the MLI comes into force for each of the contracting jurisdictions to the covered tax agreement (the CTA); and

(b) with respect to all other taxes levied by that contracting jurisdiction, for taxes levied with respect to taxable periods beginning on or after the expiration of a period of 6 calendar months from the latest of the dates on which the MLI comes into force for each of the contracting jurisdictions to the CTA.

 

2. Solely for the purpose of its own application of subparagraph a) of paragraph 1 and subparagraph a) of paragraph 5, a Party may choose to substitute "taxable period" for "calendar year", and shall notify the Depositary accordingly.

 

3. Solely for the purpose of its own application of subparagraph b) of paragraph 1 and subparagraph b) of paragraph 5, a Party may choose to replace the reference to "taxable periods beginning on or after the expiration of a period" with a reference to "taxable periods beginning on or after 1 January of the next year beginning on or after the expiration of a period", and shall notify the Depositary accordingly.

 

1.3.1. Synthesized text for withholding taxes

 

For the application of article 35(1)(a) in Japan

 

This provision shall have effect in Japan with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1st January 2020.

 

[Note: For the application by Japan of article 35(1)(a) to the India-Japan CTA, "the latest of the dates on which the MLI comes into force for each of the contracting jurisdictions to the CTA" is 1st Oct 2019 [Text-A]. Therefore, the first day of the next calendar year beginning on or after Text-A in the preceding sentence is 1st Jan 2020.]

 

For the application of article 35(1)(a), modified by article 35(2), in India

 

This provision shall have effect in India with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next taxable period that begins on or after October 1, 2019;

 

 [Note: The taxable period for India runs from 1 April to 31 March in the following year. The first day of the next taxable period beginning on or after Text-A is 1 Oct 2019.]

 

The Explanatory Statement of the MLI explains that paragraph 2 of article 35 provides that a Party may choose to substitute "taxable period" for "calendar year" for the purposes of its own application of Article 35(1)(a) and article (5)(a), and must notify the Depositary accordingly if they do so. This will permit Contracting Jurisdictions to choose to link the entry into effect of provisions related to withholding taxes to the taxable period, to address situations in which the taxable period does not follow the calendar year. That applies to India.

 

As noted above, the use of the word "solely" at the beginning of paragraph 2 is intended to make clear that this choice would apply asymmetrically and would apply only with respect to the application of paragraphs 1(a) and 5(a) of article 35 by the Contracting Jurisdiction that opted for it.

 

1.3.2. Synthesized text for other taxes

 

For the application of article 35(1)(b) in India

 

The provision shall have effect in each contracting jurisdiction with respect to the CTA, with respect to other taxes levied by India, for taxes levied with respect to the taxable periods beginning on or after 1st April 2020.

 

For the application of article 35(1)(b) in Japan

 

The provision shall have effect in each contracting jurisdiction with respect to the CTA, with respect to other taxes levied by Japan, for taxes levied with respect to the taxable periods beginning on or after 1 April 2020.

 

Note: For article 35(1)(b), the phrase "the latest of the dates the MLI comes into force for each of the contracting jurisdiction to the CTA" [Text-A, see the later of the entry-into-force in row (2) above.] refers to 1 Oct 2019. The taxable periods beginning on or after the expiration of a period of six calendar months (from 2019-10-1 to 2020-03-31) from Text-A are the periods beginning on and after 1st April 2020.

 

1.4. Article 35(4)

 

In line with the policy objective of providing early access to MAP for the taxpayer, article 35(4) modifies the entry-into-effect provision of the India-Japan CTA with respect to MAP cases which comes under article 16(1) - Mutual Agreement Procedure. The synthesized texts are set out below:

 

Notwithstanding the provisions of articles 35(1), 35(2), and 35(3), article 16 (Mutual Agreement Procedure) of the MLI shall have effect with respect to the Convention for a case presented to the competent authority of the Contracting State of which he is a resident or, if his case comes under paragraph 1 of Article 24 - Discrimination, to that of the Contracting State of which he is a national on or after the latest of the dates on which the MLI comes into force for each of the contracting jurisdictions to the covered tax agreement (See row 2, Table 2) 1 Oct 2019, except for cases that were not eligible to be presented as of that date under the Convention prior to its modification by the MLI, without regard to the taxable period to which the case relates.

 

As the information in Table B1 shows, the entry into effect date under article 35(4) shall also apply to the corresponding provision in the India-United Kingdom CTA. However, the application of article 35(4) to the Japan-Sweden CTA will be subject to modification as Sweden has reserved its right for the entry-into-effect date under article 35(4) to be replaced by that described under article 35(7)(a)(i). The entry-into-effect provision under article 35(4) shall not apply to the Iceland-Japan CTA because Iceland has reserved its right not to apply article 35(4), pursuant to article 35(6).

 

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2.1. Entry into Effect – the India-Iceland CTA

 

Table B2 - The India-Iceland CTA illustrates the asymmetrical application of Article 35(1)(a) and Article 35(2) with respect to withholding taxes, and the asymmetrical application of Article 35(1)(b) and Article 35(3) with respect to other taxes.

 

		India	Iceland
(1)	Date of deposit of instrument of ratification	25 Jun 2019	26 Sept 2019
(2)	TA entry-into-force date	1st Oct 2019	1st Jan 2020
(3)	TA Entry into effect (unilateral)	1st Apr 2020	1st Jul 2020
(4)	CTA Entry into effect (bilateral) - WHT	Article 35(1)(a), 35(2)	Article 35(1)(a)
(5)	CTA Entry into effect (bilateral) – all other tax (non-WHT)	Article 35(1)(b)	Article 35(1)(b), 35(3)

A CTA stands for a covered tax agreement, as defined under article 2(1)(a) of the MLI.

 

India has chosen to adopt Article 35(2) while Iceland does not. Iceland has chosen to adopt Article 35(3) while India does not. Article 35(2) is an alternative provision for Articles 35(1)(a) and (5)(a) respectively, and Article 35(3) is an alternative provision for Articles 35(1)(b) and (5)(b). Both Articles 35(2) and (3) read as follows:

 

2.2. The legal texts of Article 35(2) and Article 35(3)

(a) with respect to taxes withheld at source on amounts paid or credited to non-residents (withholding tax), where the event giving rise to such taxes occurs on or after the first day of the next calendar year that begins on or after the latest of the dates on which the MLI comes into force for each of the contracting jurisdictions to the covered tax agreement (the CTA); and

(b) with respect to all other taxes levied by that contracting jurisdiction, for taxes levied with respect to taxable periods beginning on or after the expiration of a period of 6 calendar months from the latest of the dates on which the MLI comes into force for each of the contracting jurisdictions to the CTA.

 

2. Solely for the purpose of its own application of subparagraph a) of paragraph 1 and subparagraph a) of paragraph 5, a Party may choose to substitute "taxable period" for "calendar year", and shall notify the Depositary accordingly.

 

3. Solely for the purpose of its own application of subparagraph b) of paragraph 1 and subparagraph b) of paragraph 5, a Party may choose to replace the reference to "taxable periods beginning on or after the expiration of a period" with a reference to "taxable periods beginning on or after 1 January of the next year beginning on or after the expiration of a period", and shall notify the Depositary accordingly.

 

2.3.1. Synthesized text for withholding taxes

 

For the application of article 35(1)(a) in Iceland

 

This provision shall have effect in Iceland with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1st January 2020.

 

[Note: For the application by Iceland of article 35(1)(a) to the India-Iceland CTA, "the latest of the dates on which the MLI comes into force for each of the contracting jurisdictions to the CTA" is 1st Jan 2020 [Text-A]. Therefore, the first day of the next calendar year beginning on or after Text-A in the preceding sentence is 1st Jan 2020.]

 

For the application of article 35(1)(a), modified by article 35(2), in India

 

This provision shall have effect in India with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after 1st January 2020.

 

[Note: The taxable period for India runs from 1 April to 31 March in the following year. The first day of the next taxable period beginning on or after Text-A is 1 April 2020.]

 

The Explanatory Statement of the MLI explains that paragraph 2 of article 35 provides that a Party may choose to substitute "taxable period" for "calendar year" for the purposes of its own application of Article 35(1)(a) and article (5)(a), and must notify the Depositary accordingly if they do so. This will permit Contracting Jurisdictions to choose to link the entry into effect of provisions related to withholding taxes to the taxable period, to address situations in which the taxable period does not follow the calendar year. That applies to India.

 

As noted above, the use of the word "solely" at the beginning of paragraph 2 is intended to make clear that this choice would apply asymmetrically and would apply only with respect to the application of paragraphs 1(a) and 5(a) of article 35 by the Contracting Jurisdiction that opted for it.

 

2.3.2. Synthesized text for other taxes

 

For the application of article 35(1)(b) in India

 

The provision shall have effect in each contracting jurisdiction with respect to the CTA, with respect to other taxes levied by India, for taxes levied with respect to the taxable periods beginning on or after 1st July 2020.

 

Note: For article 35(1)(b), the phrase "the latest of the dates the MLI comes into force for each of the contracting jurisdiction to the CTA" [Text-A, see the later of the entry-into-force in row (2) above.] refers to 1 Jan 2020. The taxable periods beginning on or after the expiration of a period of six calendar months (from 2020-01-01 to 2020-06-30) from Text-A are the periods beginning on and after 1st July 2020.

 

For the application of article 35(1)(b) in Iceland

 

The provision shall have effect in each contracting jurisdiction with respect to the CTA, with respect to other taxes levied by Iceland for taxes levied with respect to the taxable periods beginning on or after 1 Jan 2021.

 

Note: For article 35(1)(b), the phrase "the latest of the dates the MLI comes into force for each of the contracting jurisdiction to the CTA" [Text-A, see the later of the entry-into-force in row (2) of Table B2 above.] refers to 1 Jan 2020. The taxable periods beginning on or after 1 January of the next calendar year beginning on or after the expiration of a period of six calendar months (from 2020-01-01 to 2020-06-30) from Text-A are the periods beginning on and after 1st Jan 2021.

 

2.4. Article 35(4)

 

Article 35(4) that provides the early access by the taxpayer to the mutual agreement procedure is not applicable to the Iceland-India CTA because Iceland has reserved its right for article 35(4) not to apply to its CTAs, pursuant to article 35(6). India shall follow the choice of Iceland in accordance with paragraph 3 of Article 28 - Reservation.

 

 

 

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3.1. The India-Sweden CTA

 

Sweden has opted for the alternative provision under article 35(3), and reserved its right under article 35(7)(a), which provides that:

 

“A Party may reserve the right to replace:

1. the references in paragraphs 1 and 4 [of article 35] to "the latest of the dates on which this Convention enters into force for each of the Contracting Jurisdictions to the Covered Tax Agreement"; and
2. the references in paragraph 5 [of article 35] to "the date of the communication by the Depositary of the notification of the extension of the list of agreements";

with references to "30 days after the date of receipt by the Depositary of the latest notification by each Contracting Jurisdiction making the reservation described in paragraph 7 of Article 35 (Entry into Effect) that it has completed its internal procedures for the entry into effect of the provisions of this Convention with respect to that specific Covered Tax Agreement".

 

Table B3 illustrates how article 35(1), as modified by article 35(3) and 35(7) is applied to the India-Sweden CTA.

		Sweden	India
(1)	Date of deposit of the instrument of ratification	22 Jun 2018	25 Jun 2019
(2)	TA Entry-into-force date	01 Oct 2018	01 Otc 2019
(3)	TA Entry into effect (unilateral)	01 Apr 2019	01 Apr 2020
(4)	CTA Entry into effect (bilateral) for WHT	Article 35(1)(a), Article 35(7)(a)	Article 35(1)(a), Article 35(2)
(5)	CTA Entry into effect (bilateral) for all other tax	Articles 35(1)(b), 35(3), 35(7)(a)	Articles 35(1)(b)

 

3.2.1. Modified texts for withholding taxes

 

The India-Sweden tax treaty became a covered tax agreement (CTA) on the first day of Oct 2019. As noted, India has adopted Article 35(2), which modifies Article 35(1)(a) solely for its own application. It follows that the entry-into-effect date should fall on 1st Apr 2020 where the event giving rise to such taxes occurs on or after 1st day of the next taxable period beginning on or after the entry-into-force date of 1st Oct 2019. In contrast, Sweden has reserved its right to replace the date provided under article 35(1)(a) [text-A thereafter] with the date described under article 35(7)(a)(i) [text-B thereafter]. In accordance with article 28(3), India shall follow Sweden’s choice to apply article 35(7)(a)(i) to the India-Sweden CTA.

 

3.2.2. Modified texts for other taxes

 

Article 35(1)(b) shall also be subject to the reservation made by Sweden under article 35(7)(a)(i), which replaces the entry-into-effect date under article 35(1)(b) with the date described in article 35(7)(a)(i), and that reservation provision shall apply symmetrically to both the contracting jurisdictions.

 

In addition, article 35(1)(b) shall be subject to the option chosen by Sweden under article 35(3), which shall apply to Sweden solely.

 

3.3. Synthesized text - article 35(7)(a)(i)

 

The synthesized text of the entry-into-effect article 35(1), as modified by article 35(3) and article 35(7)(a), and the India-Sweden CTA shall read as follows, with strikethrough texts, bold texts, and emphasis added: -

 

The provisions of this Convention (article 35) shall have effect in each Contracting Jurisdiction with respect to the Covered Tax Agreement: 1.1. [Article 35(1)(a) as modified by article 35(2) and article 35(7)(a)(i) for India] with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next calendar year taxable period [text-A, per article 35(2)] that begins on or after the latest dates on which the MLI enters into force for each of the contracting jurisdictions to the CTA 30 days after the date of receipt by the Depositary of the notification by Sweden that it has completed its internal procedures for the entry into effect of the provisions of the MLI with respect to the Japan-Sweden Covered Tax Agreement [text-B, per article 35(7)(a)(i)];   1.2. [Article 35(1)(a) as modified and article 35(7)(a)(i) for Sweden] with respect to taxes withheld at source on amounts paid or credited to non-residents, where the event giving rise to such taxes occurs on or after the first day of the next calendar year that begins on or after the latest dates on which the MLI enters into force for each of the contracting jurisdictions to the CTA [text-A] 30 days after the date of receipt by the Depositary of the notification by Sweden that it has completed its internal procedures for the entry into effect of the provisions of the MLI with respect to the Japan-Sweden Covered Tax Agreement [text-B, per article 35(7)(a)(i)];"   2.1. [Article 35(1)(b), as modified by Article 35(7)(a)(i) for India]   “with respect to all other taxes levied by India, for taxes levied with respect to taxable periods beginning on or after the expiration of a period of six calendar months from the latest dates on which the MLI enters into force for each of the contracting jurisdictions to the CTA [text-A] 30 days after the date of receipt by the Depositary of the notification by Sweden that it has completed its internal procedures for the entry into effect of the provisions of the MLI with respect to the India-Sweden Covered Tax Agreement.” [text-B, per article 35(7)(a)(i)]   2.2. [Article 35(1)(b) as modified by articles 35(3) and 35(7)(a)(i) for Sweden]   “with respect to all other taxes levied by Sweden, for taxes levied with respect to taxable periods beginning on or after 1 January of the next calendar year beginning on or after [per article 35(3)] the expiration of a period of six calendar months from the latest dates on which the MLI enters into force for each of the contracting jurisdictions to the CTA [text-A] 30 days after the date of receipt by the Depositary of the notification by Sweden that it has completed its internal procedures for the entry into effect of the provisions of the MLI with respect to the India-Sweden Covered Tax Agreement.” [text-B, per article 35(7)(a)(i)]   3. [Article 35(4), as modified by Article 35(7)(a)(i) for both India and Sweden]   Notwithstanding articles 35(1), (2) and (3), Article 16 (Mutual Agreement Procedure) of the MLI shall have effect with respect to the Convention for a case presented to the competent authority of a Contracting State, of which he is a resident, [per article 16(5)(a)] on or after 30 days after the date of receipt by the Depositary of the notification by Sweden that it has completed its internal procedures for the entry into effect of the provisions of the MLI with respect to the Convention, except for cases that were not eligible to be presented as of that date under the Convention prior to its modification by the MLI, without regard to the taxable period to which the case relates.

 

The reference to the entry into effect changes from the entry-into-force date as provided under article 35(1)(b) to a date that is contingent upon the specified notification by the reserving contracting jurisdiction (i.e. Sweden) as provided under article 35(1)(b) that is modified by article 35(7)(a)(i).

 

3.4. Additional notification required by Article 35(7)(b)

 

Specifically, Article 35(7)(b) provides that a contracting jurisdiction is obligated to give simultaneous notification to the Depositary and the other party to a CTA for a reservation made under articles 35(7)(a)(i) that modifies article 35(1) and article 35(4), and article 35(7)(a)(ii) that modifies article 35(5) respectively. The OECD Depositary has provided a separate column for the publication of the notification specified in accordance with article 35(7)(b), which reads: “A Party (contracting jurisdiction) making a reservation in accordance with 35(7)(a) shall notify the confirmation of the completion of its internal procedures simultaneously to the Depositary and the other contracting jurisdiction(s)”.

 

As of 18 December 2020, Sweden had not given the notification to the Depositary in accordance with article 35(7)(b). [read]

 

 

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